Moloney v. Moloney

Citation163 Kan. 597,185 P.2d 167
Decision Date04 October 1947
Docket Number36854.
PartiesMOLONEY v. MOLONEY.
CourtUnited States State Supreme Court of Kansas

Appeal from District Court, Morris County; James P. Coleman, Judge.

Habeas corpus proceeding by Andrew J. Moloney against Marjorie H Moloney to obtain custody of children of the parties. From a judgment in favor of defendant, the plaintiff appeals.

Judgment reversed with instructions.

Syllabus by the Court.

A wife and mother living in a foreign jurisdiction brought an action there for a divorce and custody of her children. Her husband was granted a divorce on a cross-petition and she was granted custody of the children and permitted to bring them to Kansas. A new trial was granted by the court of foreign jurisdiction and custody of the children was given therein to the husband, who thereafter brought a habeas corpus action in Kansas to recover possession of them from their mother. Held the final decree of the foreign court was entitled to full faith and credit and the mother, having invoked its jurisdiction for the purpose of having the custody of the children determined by such court, cannot assert that such foreign court lost jurisdiction of the children by reason of their having been brought to Kansas prior to the issuance of the final custody decree by the foreign court. Following Kirby v. Kirby, 143 Kan. 430, 55 P.2d 356.

Stanley Taylor, of El Dorado (Champ Graham, of Emporia, on the brief), for appellant.

Walter E. Hembrow, of Council Grove, for appellee.

BURCH Justice.

This appeal is from a ruling sustaining a demurrer to the evidence and the plaintiff's pleadings in a habeas corpus case concerning the custody of children and involves the validity and effect of rulings made in a divorce case by the circuit court of St. Louis, Missouri. The children were brought to Kansas following an original custody decree entered in the divorce action, which decree was later set aside in connection with the granting of a new trial by the Missouri court. The trial court ruled that the Missouri court lost jurisdiction of the children after they were brought to Kansas prior to the granting of the new trial and that evidence of misconduct occurring prior to the original custody decree could not be introduced for the purpose of showing that the defendant was an improper person to have custody of the children.

The pleadings set forth most of the essential facts. The plaintiff's petition seeking custody of the children alleges: That he is the father of the children; is a resident of St. Louis, Missouri; the defendant, who is the mother of the children, lives in Council Grove, Kansas; that she unlawfully detains the children in such place by reason of a judgment rendered by the circuit court, city of St Louis, Court of Domestic Relations, state of Missouri, on September 12, 1946, which judgment granted the plaintiff a divorce from the defendant and also granted the plaintiff the care, custody and control of the children; that such judgment is entitled to full faith and credit in the state of Kansas. In addition to such facts, the petition alleges the plaintiff is a proper person to have the custody of the children and that the defendant is unfit to have their custody.

The defendant's answer and return to the writ sets forth that she is devoting her full time, energy and efforts to the welfare of the children; that she brought them to Kansas pursuant to the orginal custody decree entered in the same action referred to in the plaintiff's petition, on May 10, 1946; that such decree granted the defendant the custody of the children and the privilege of taking them to Council Grove, Kansas; the court, making such order on May 10, 1946, then had jurisdiction of the plaintiff and the defendant and their minor daughters. Answering further, the defendant alleges the plaintiff was divorced forever from the defendant upon his answer and cross-petition in the divorce action on May 10, 1946; that the defendant brought the children to Kansas with the plaintiff's full knowledge thereof and under authority of the Missouri court for the purpose of establishing a permanent home for herself and the children in Council Grove, Kansas, wholly without any intention of ever returning to the state of Missouri; since May 10, 1946, she has no legal representative in Missouri and has lived with the children in Kansas. The defendant's answer also alleges that she had no notice or knowledge at the time thereof of the plaintiff having filed a motion for a new trial in the divorce action on May 20, 1946, after the defendant had moved to Kansas; that she is now informed the plaintiff filed such a motion and the action admits that the defendant was permitted by the court to bring the children to Kansas, outside of the jurisdiction of the court, and that such admission is binding and conclusive upon the plaintiff and estopped him from asserting that the Missouri court had not lost jurisdiction of the children. The defendant's answer continues by alleging that on June 14, 1946, the plaintiff filed in the divorce action a second amended answer and cross-bill; the defendant did not plead thereto, or appear upon the hearing thereof; on May 31, 1946, in the divorce action the court on its own motion set aside the decree of divorce and the custody order but that such action of the court had no validity or effect insofar as the minor children were concerned because they were permanently domiciled in Kansas on such date and the Missouri court had lost jurisdiction of them and had no jurisdiction on September 13, 1946, to award the plaintiff the custody of the children as set forth in the plaintiff's petition; that no inquiry was made on such date as to the general welfare of the children and the decision granting the plaintiff custody thereof was based on false testimony, without any regard for the best interests of the children. As a second defense and answer, the defendant denies all the plaintiff's allegations which are not admitted, and sets forth: 'Defendant further alleges and states that the circumstances and conditions have changed since September 13, 1946, even if the Missouri Court should be found to have jurisdiction, to the extent that the general welfare, health, and best interests of the minor children demand that they be permitted to remain in Council Grove, Kansas, in the custody of their mother.' In addition, the defendant alleges that she has married James Ailworth, who has steady employment and that she is financially able to care for the children in her home which she and her husband and the children occupy by themselves in Council Grove. Copies of all the orders of the Missouri court referred to in the defendant's pleading are attached thereto and all orders and rulings of such court apparently were considered by the Kansas trial court without objection.

At the time of the trial in the Kansas district court the plaintiff testified as to circumstances indicating that he was a proper and fit person to have custody of his children and as to his having learned of certain improper conduct on the part of the defendant which occurred prior to May 10, 1946, and which induced the plaintiff in the present action to file a motion for a new trial in the action which had been filed in Missouri. After the introduction of testimony of such general nature the plaintiff was asked the question relative to the defendant's present husband, Mr. Ailworth, having been indirectly involved in the divorce case in St. Louis. An objection was sustained to the question, whereupon counsel for the plaintiff made an offer of proof. The proffer, in substance, set forth that for the purpose of showing who was a proper person to have custody of the children counsel for the plaintiff proposed to prove that Ailworth had broken up the plaintiff's home and that the marriage of the defendant to Ailworth was preconceived and calculated before she filed her petition for divorce in St. Louis and that Ailworth and the defendant were improper persons to have any part in the control of the children. The court's ruling was as follows:

'The ruling is that so far as the fitness of the party to have the custody of the children is concerned we are limited to matters which have occurred since the divorce; for that reason the offer is refused.'

Examination of the record discloses that the trial court ruled that all testimony pertaining to conduct of the parties which occurred prior to May 10, 1946, should be excluded because the uncontradicted evidence disclosed that the defendant had been awarded the custody of the children by the first decree in the Missouri court and that therefore she had a right to bring the children to the state of Kansas and that when a party having the rightful custody of children takes them to another state for the purpose of establishing a domicile in that state, the custodian thereby transfers the domicile of the children. As a result the trial court ruled that the Missouri court had lost jurisdiction of the children after they were brought to Kansas and that therefore the Missouri court was without jurisdiction at the time the second custody degree was entered. The plaintiff in the present case relied upon the validity of the second custody decree and contended in the trial court that the first custody decree was not a final decree. The trial court took the position that it made no difference whether the first decree was a final decree that since the defendant had rightful custody of the children at the time she brought them to Kansas, a lawful transfer of the domicile of the children was made at that time and that therefore at the time the other proceedings relative to the custody of the children occurred in the Missouri court, such court had no jurisdiction over...

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8 cases
  • Miracle, Application of, 46356
    • United States
    • United States State Supreme Court of Kansas
    • November 6, 1971
    ...131 (1962); Price v. Price, 187 Kan. 292, 356 P.2d 1013 (1960); White v. White, 160 Kan. 32, 159 P.2d 461 (1945); Moloney v. Moloney, 163 Kan. 597, 185 P.2d 167 (1947); Leach v. Leach, 184 Kan. 335, 336 P.2d 425 The appellant contends the trial court erred in overruling her motion for judgm......
  • Kokenge v. Holthaus
    • United States
    • United States State Supreme Court of Kansas
    • June 12, 1948
  • Small v. Small
    • United States
    • United States State Supreme Court of Kansas
    • November 6, 1965
    ...the domicile of the child. (Tompkins v. Garlock, 189 Kan. 425, 370 P.2d 131; Hannon v. Hannon, 186 Kan. 231, 350 P.2d 26; Moloney v. Moloney, 163 Kan. 597, 185 P.2d 167; Kruse v. Kruse, 150 Kan. 946, 96 P.2d 849; Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. The new code provide the onl......
  • Anderson v. Anderson, 47208
    • United States
    • United States State Supreme Court of Kansas
    • April 6, 1974
    ...had been rendered by a court of this state.' (Syl. 2.) This general principle has been echoed in subsequent cases. (Moloney v. Moloney, 163 Kan. 597, 185 P.2d 167; Fincham v. Fincham, 174 Kan. 199, 207, 255 P.2d 1018; King v. King, 185 Kan. 742, 748, 347 P.2d 381.) In the recent case of Per......
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